Article 165

Article 165 of the Constitution of India establishes the office of the Advocate-General for the State, who serves as the highest legal officer at the State level. The Advocate-General performs duties analogous to those of the Attorney General of India under Article 76 but within the jurisdiction of the respective State. The position is designed to ensure that State governments act within the framework of the law and receive sound legal advice on constitutional and administrative matters.

Constitutional Text

Article 165 states:

(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State.
(2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.
(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.

Appointment and Qualifications

1. Appointing Authority:
   • The Governor of the State appoints the Advocate-General.
   • The appointment reflects the Governor’s discretion, though in practice, it is made in consultation with the Council of Ministers headed by the Chief Minister.
2. Qualifications:
   • To be eligible, a person must be qualified to be appointed as a Judge of a High Court under Article 217(2), which means:
     • They must be a citizen of India, and
     • They must have ten years of experience as an advocate of a High Court, or
     • They must have held judicial office for at least ten years.

This ensures that the Advocate-General possesses the necessary legal knowledge, professional experience, and constitutional insight to advise the State government effectively.

Tenure and Service Conditions

1. Tenure:
   • The Advocate-General holds office during the pleasure of the Governor, implying that there is no fixed term and the Governor may remove the Advocate-General at any time.
   • The Advocate-General may also resign by submitting a resignation to the Governor.
2. Remuneration and Conditions:
   • The Governor determines the remuneration and other conditions of service.
   • The Advocate-General’s salary is usually paid from the Consolidated Fund of the State.
3. Independence of Office:
   • Though appointed by the Governor, the Advocate-General is not part of the State Cabinet and functions independently of political influence, ensuring objective and impartial legal advice.

Duties and Functions

The Advocate-General performs a wide range of advisory and legal functions, both constitutional and statutory.

1. Legal Advisor to the State Government:
   • Advises the Governor and the State Council of Ministers on legal matters, including constitutional interpretation, legislative drafting, and administrative decisions.
2. Representation in Courts:
   • Represents the State Government in legal proceedings before the High Court or the Supreme Court of India.
   • May also represent the State in cases involving public interest, taxation, and constitutional challenges.
3. Other Legal Duties:
   • Performs such duties of a legal character as may be referred or assigned by the Governor.
   • Discharges functions conferred under any law or constitutional provision applicable to the State.
4. Participation in the Legislature (Article 177):
   • The Advocate-General has the right to attend and speak in the proceedings of the State Legislature or its committees but cannot vote.
   • This facilitates coordination between the executive and legislative branches in legal and constitutional matters.

Legal Status and Nature of Office

• The Advocate-General is a constitutional authority and not a political appointee in the traditional sense.
• The office functions as the chief legal advisor to the State government and acts as a bridge between the executive and judiciary.
• Although the Advocate-General is appointed by the Governor, they are expected to act independently, impartially, and in accordance with the law, rather than under political direction.

Judicial Precedents and Case Laws

Several judicial pronouncements have clarified the role, powers, and duties of the Advocate-General:

1. K. K. Verma v. Union of India (1954):
   • The Supreme Court highlighted that the Advocate-General’s role is advisory in nature and meant to ensure the legality and constitutionality of executive actions.
2. State of Punjab v. Balbir Singh (1994):
   • The Court discussed the Advocate-General’s role in representing the State in court and reaffirmed their duty to act in the public interest and in accordance with law.
3. K. S. Puttaswamy v. Union of India (2017):
   • Although primarily on privacy, the judgment emphasised the importance of constitutional legal advice in safeguarding fundamental rights — a responsibility often shouldered by the Advocate-General at the State level.

These cases underscore that the Advocate-General’s position is not merely administrative but integral to the constitutional governance of the State.

Comparison with the Attorney General of India

This parallel structure ensures that both the Union and States have access to qualified legal counsel to assist in constitutional governance.

Related Constitutional Provisions

• Article 76: Establishes the Attorney General for India.
• Article 177: Grants the Advocate-General the right to participate in the proceedings of the State Legislature.
• Article 226: Gives the High Courts power to issue writs, where the Advocate-General often represents the State.

Together, these provisions integrate the Advocate-General’s office into the broader constitutional and judicial framework of governance.

Significance of the Advocate-General’s Office

1. Upholding the Rule of Law:
   • Ensures that the actions and policies of the State government conform to the Constitution and statutory provisions.
2. Legal Representation:
   • Acts as the State’s chief legal representative in constitutional and administrative litigation.
3. Constitutional Advisor:
   • Provides guidance on constitutional interpretation, legal reforms, and policy decisions with legal implications.
4. Maintaining Federal Balance:
   • The Advocate-General’s office symbolises the legal autonomy of the States, mirroring the Attorney General’s role at the Union level.
5. Supporting the Legislative Process:
   • By participating in legislative debates, the Advocate-General contributes to the constitutional soundness of laws enacted by the State Legislature.

Limitations of the Advocate-General

• Permission to Represent:The Advocate-General cannot represent the State in court without the Governor’s consent.
• No Executive Power:The office is purely advisory and legal in nature, not an executive authority.
• Removal at Pleasure:Since the tenure is at the pleasure of the Governor, there may be risks of political influence or instability.
• No Voting Power:Although entitled to participate in legislative proceedings, the Advocate-General cannot vote.

Historical Context and Evolution

The position of the Advocate-General has its origins in the British legal-administrative system, where each province had an official legal advisor. The framers of the Indian Constitution retained this model to ensure legal accountability of State governments and to provide constitutional continuity.
Over time, the role has evolved to address modern governance challenges, such as:

• Advising on complex constitutional disputes between States and the Centre.
• Representing States in public interest litigations.
• Guiding policy formulation in areas like environmental regulation, taxation, and social justice.

Contemporary Relevance

In recent years, the role of the Advocate-General has become increasingly significant:

• As legal complexities in governance grow, the Advocate-General provides vital constitutional interpretation and legal defense for State policies.
• There is a growing demand for transparency and merit-based selection to maintain public trust and avoid politicisation of the office.